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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Radio One Licenses, LLC ) File No. EB-02-DV-439
Licensee of FM Radio Station KKBT ) NAL/Acct. No. 200432100002
Los Angeles, California ) FRN 0006541486
Facility ID # 70038 )
Infinity Broadcasting Operations, Inc. ) NAL/Acct. No. 200432100003
Licensee of FM Radio Station KRTH-FM ) FRN 0003476074
Los Angeles, California )
Facility ID # 28631 )
Telemundo of Los Angeles License Corporation ) NAL/Acct. No. 200432100004
Licensee of TV Station KWHY-TV ) FRN 0004294179
Los Angeles, California )
Facility ID # 26231 )
MEMORANDUM OPINION AND ORDER
Adopted: November 28, 2006 Released: December 1, 2006
By the Commission:
1. In this Memorandum Opinion and Order ("Order"), we deny petitions for
reconsideration filed by Infinity Broadcasting Operations, Inc.
("Infinity"), licensee of FM radio station KRTH-FM, Telemundo of Los
Angeles License Corporation ("Telemundo"), licensee of TV station
KWHY-TV, and Radio One Licenses, LLC ("Radio One"), licensee of FM
radio station KKBT, all serving Los Angeles, California, (collectively
"Mt. Wilson Licensees") of a Forfeiture Order issued in this
proceeding on December 10, 2004. The Forfeiture Order assessed
monetary forfeitures of $10,000 against each of the Mt. Wilson
Licensees for willful and repeated violations of Section 1.1310 of the
Commission's Rules ("Rules") by failing to comply with radio frequency
radiation ("RFR") maximum permissible exposure ("MPE") limits
applicable to facilities, operations, or transmitters. In this Order,
we consider the various issues raised in the Infinity, Telemundo and
Radio One petitions, and for the reasons we set forth below we deny
the petitions and affirm the Commission's findings of liability, and
the forfeiture amounts assessed, in the Forfeiture Order.
2. The RFR Rules. In 1996, the Commission amended its rules to adopt new
guidelines and procedures for evaluating the environmental effects of
RFR from FCC regulated transmitters. The Commission adopted maximum
permissible exposure ("MPE") limits for electric and magnetic field
strength and power density for transmitters operating at frequencies
from 300 kHz to 100 GHz. These MPE limits, which are set forth in
Section 1.1310 of the Rules, include limits for
"occupational/controlled" exposure and limits for "general
population/uncontrolled" exposure. The occupational exposure limits
apply in situations in which persons are exposed as a consequence of
their employment, provided those persons are fully aware of the
potential for exposure and can exercise control over their exposure.
The limits of occupational exposure also apply in situations where an
individual is transient through a location where the occupational
limits apply, provided that he or she is made aware of the potential
for exposure. The more stringent general population or public exposure
limits apply in situations in which the general public may be exposed,
or in which persons exposed as a consequence of their employment may
not be fully aware of the potential for exposure or cannot exercise
control over their exposure. Licensees can demonstrate compliance by
restricting public access to areas where RFR exceeds the public MPE
3. The MPE limits specified in Table 1 of Section 1.1310 are used to
evaluate the environmental impact of human exposure to RFR and apply
to "...all facilities, operations and transmitters regulated by the
Commission." Further, the FCC's rules require that if the MPE limits
are exceeded in an accessible area due to the emissions of multiple
transmitters, actions necessary to bring the area into compliance "are
the shared responsibility of all licensees whose transmitters produce,
at the area in question, power density levels that exceed 5% of the
power density exposure limit applicable to their particular
transmitter." The 5% threshold applies to the power density limit or
to the square of electric or magnetic field strength limit. If the MPE
limits are exceeded at an accessible area, all stations that produce a
power density level exceeding 5% of the power density exposure limit
applicable to its particular transmitter at that accessible area share
responsibility to correct the problem. While we have urged owners of
transmitter sites to allow applicants and licensees to take reasonable
steps to comply with the Commission's RF Rules, the Commission has
determined that responsibilities pertaining to RF electromagnetic
fields belong with licensees and applicants, rather than with site
4. Broadcast stations that filed applications after October 15, 1997, for
an initial construction permit, license, renewal or modification of an
existing license were required to demonstrate compliance with the new
RFR MPE limits, or to file an Environmental Assessment and undergo
environmental review by Commission staff. In addition, all existing
licensees, including all licensees at multiple transmitter sites, were
required to come into compliance with the new RFR MPE limits by
September 1, 2000, or to file an Environmental Assessment.
5. The Mount Wilson Inspection. On July 11 and 12, 2002, agents from the
FCC's Enforcement Bureau field offices conducted an inspection of the
Mt. Wilson telecommunications and antenna farm site located northeast
of downtown Los Angeles, California, off Highway 2, on Mt. Wilson
(5710 ft.) in the San Gabriel Mountains. The main antenna farm,
encircled by Video Road, was not fully fenced or gated. Agents were
able to access the site without encountering protective fencing or
warning signs on July 11, 2002, on three sides of the area and on two
sides of the area on July 12, 2002. Nestled within the broadcast
towers on Video Road is the Mt. Wilson United States Post Office
(91023), which serves the Mt. Wilson area. Approximately 330 yards
southeast from the United States Post Office is the entrance to the
Mt. Wilson Observatory and Park, which receives thousands of visitors
a year. Given the accessibility of the site by the general public,
along with the dearth of warning signs, the RFR MPE limits for
"General Population/Uncontrolled Exposure" applied to any readings
taken at the accessible areas.
6. The agents identified a 10 ft. by 100 ft. area on a driveway into the
main antenna farm located off Video Road on July 11, 2002, that
exceeded the FCC's public MPE limits at ground level. The identified
area on the driveway was only approximately 100 feet from the United
States Post Office, accessible to the general public and not marked
with any RFR warning signs. On July 11, 2002, agents made power
density measurements throughout the identified area on the driveway
that ranged from 152.5% to 197.5% of the public RFR MPE limit. Thus,
conservatively, the RFR fields exceeded the MPE limits for the general
population by over 50%.
7. After identifying and marking the area on the driveway exceeding the
RFR MPE public limits, the agents observed a broken chain on the
ground to one side of the entrance to the driveway, on top of a
weathered and damaged "No Trespassing" sign. The agents noted that
they, and the general public, were able to access the area without
encountering protective fencing or warning signs on three sides of the
area that exceeded the public RFR MPE limit. Just prior to the time
the agents departed that area of the Mt. Wilson antenna farm on July
11, an engineer from one of the stations at the site repaired the
chain, strung it across the driveway, and placed a RFR warning sign on
the chain. Several broadcast station engineers familiar with the site
admitted to FCC agents that the chain had not been attached for
several days prior to the inspection on July 11 and most likely had
been taken down by contractors working for licensees at the site.
8. On July 12, 2002, FCC agents, with the cooperation of all the
broadcasters at the Mt. Wilson antenna farm, conducted additional
measurements at the area marked and identified as exceeding the public
RFR MPE limits. Although an engineer from one of the stations at the
site repaired the chain with the RFR warning sign and strung it across
the driveway, Commission agents, and the general public, including any
members of the public exiting from the Post Office, were still able to
access the area that exceeded the public RFR MPE from two sides
without encountering protective fencing or warning signs. The agents
marked a single spot in the middle of the approximately 10 feet by 100
feet area identified on July 11 as exceeding the MPE public limits and
made RFR measurements with all stations transmitting to establish the
overall power density level. The overall RFR power density measurement
on the driveway was 160.5% of the MPE public limit with all stations
in operation. Field agents then requested each licensee in the
vicinity of the identified area to temporarily and sequentially power
down its transmitter. Field agents made two spatially averaged RFR
power density measurements while each broadcast station's transmitter
was powered off to determine the power density level produced by each
transmitter and to determine which transmitters were producing power
density levels that exceeded 5% or more of its individual MPE limit at
the identified area.
9. The on-air and off-air measurements indicated that four of the 21
stations within the vicinity were producing power density levels at
significantly more than 5% of the public MPE limits applicable to
their transmitter. When KBIG-FM went off the air, the RF level
decreased from 160.5% to 78.75% of the MPE public limit indicating
that KBIG-FM was producing a power density level that was 81.75 % of
the MPE limit for its particular transmitter. Based on these
measurements and further calculations, the power density level
produced by station KBIG-FM was 0.1635 mW/cm^2. Based upon similar
procedures, FM station KKBT was producing a power density level that
was 11% of the MPE limit for its particular transmitter (a power
density of 0.022 mW/cm^2), FM station KRTH-FM was producing a power
density level that was 11.75% of the MPE limit for its particular
transmitter (a power density of 0.0235 mW/cm^2), and TV station
KWHY-TV was producing a power density level that was 10.5% of the MPE
limit for its particular transmitter (a power density of 0.036
mW/cm^2) to the total RFR in the area identified as exceeding the
public RFR MPE limits.
10. On September 3, 2003, a field agent conducted an inspection of the Mt.
Wilson site and found that the Mt. Wilson Licensees had subsequently
installed additional fencing and warning signs. However, the field
agent discovered that a gate leading to one of the entrances to the
site was standing open. It appeared that although the Mt. Wilson
Licensees had installed additional fencing and warning signs, they
failed to exercise due diligence in restricting access to all areas
that exceeded the public MPE limits.
11. On October 22, 2003, the Commission issued a Notice of Apparent
Liability for Forfeiture ("NAL") to AMFM, Infinity, Telemundo, and
Radio One for forfeitures in the amount of ten thousand dollars
($10,000) each. Also, given the September 3, 2003 inspection, the
Commission directed each of the Mt. Wilson Licensees to file sworn
statements describing its plans to ensure that the fences surrounding
the area are shut and that the gates are locked. Each of the parties
filed a response to the NAL on December 12, 2003. AMFM did not dispute
the NAL and paid the forfeiture, while Infinity, Telemundo, and Radio
One all argued the proposed forfeitures should be reduced, dismissed
12. On December 10, 2004, the Commission released a Forfeiture Order
assessing monetary forfeitures of $10,000 against Infinity, Telemundo,
and Radio One for willful and repeated violations of Section 1.1310 of
the Rules by failing to comply with the Commission's RFR MPE limits
applicable to facilities, operations, or transmitters. The Commission
also determined that the sworn statements submitted by Infinity,
Telemundo and Radio One all indicated that the three licensees
continued to misinterpret their responsibilities under the
Commission's RFR Rules. The Commission cautioned that each of the four
Mt. Wilson Licensees exceeded the five percent limit, and each must
therefore share in the responsibility to bring the area into
compliance and make the non-compliant area inaccessible to the public.
13. Infinity. Infinity seeks reconsideration arguing that the federal
government owns the land on which the Mt. Wilson site sits and, as
such, should have engaged in a collaborative effort with the licensees
at the multi-user site to reduce the RFR emissions; and that the
$10,000 forfeiture amount should be apportioned among the violators
according to each station's percentage contribution to the overall
violation of the power density limits at the problematic location.
14. Telemundo. Telemundo seeks reconsideration arguing that no reliable
evidence justifies sanctions against KWHY-TV; that the Commission
disregarded the application of uncertainty factors in the
measurements; that the Commission failed to adopt the uniform use of a
reliable methodology for enforcing the RFR Rules; that the Commission
incorrectly rejects Telemundo's own measurements; and that the
Commission did not explain its preference for measurements over
15. Radio One. Radio One seeks reconsideration arguing that the Commission
did not explain why KKBT(FM) could be held liable while not revealing
or explaining the measurement or liability of KHHT(FM), another Mt.
Wilson station, which broadcasts from the same tower as KKBT(FM).
16. Reconsideration is appropriate where the petitioner either
demonstrates a material error or omission in the underlying order or
raises additional facts or changed circumstances not known or not
existing until after the petitioner's last opportunity to present such
matters. A petition for reconsideration that reiterates arguments that
were previously considered and rejected will be denied.
B. Infinity Petition
17. In its petition, Infinity states that it "affirms, but does not
reiterate" arguments that were considered and rejected in the
Forfeiture Order, specifically, that the federal government is the
site owner of the Mt. Wilson site, and should be amenable to an
inclusive, collaborative enforcement approach. Infinity also argues
that the $10,000 forfeiture amount should be apportioned among the
violators according to each station's percentage contribution to the
overall violation of power density limits at the problematic location.
All of these issues were raised and rejected in the Forfeiture Order,
and, therefore, we will not consider them anew here. We will, however,
take this opportunity to reiterate our prior determination that
"responsibilities pertaining to RF electromagnetic fields properly
belong with our licensees and applicants, rather than with site
owners." We also reiterate that it is the responsibility of the
licensees on the site to engage in a collaborative approach to ensure
that the public is not able to access areas which could exceed the
public MPE limits. The Commission has encouraged licensees to engage
in such collaborations and to "notify the appropriate Commission
licensing bureau if the operator of a co-located transmitter will not
cooperate in addressing a non-compliance problem." The Commission has
also directed the staff to work with industry to address such
questions as may arise. But our policy encouraging collaboration does
not insulate licensees from enforcement action for violations.
18. Infinity raises for the first time two new reasons why it believes the
forfeiture amount should be reduced. First, Infinity argues that the
area of "excess RFR was temporary in nature." We disagree. We note
that in the Forfeiture Order, the Commission determined that the
violation was not only willful, but was repeated, because it occurred
on two days, July 11, 2002 and July 12, 2002. Infinity does not argue
that the violation was not repeated nor does it explain why it
believes that a public safety violation, such as producing RFR in
excess of the public MPE limits for more than one day, requires a
reduction in the forfeiture amount.
19. Infinity also argues that the forfeiture amount should be reduced
because RFR measurements are inherently imprecise. Infinity further
asserts that the Commission's MPE limits are extremely conservative,
with the public limit being five times more stringent than the
occupational limit, and the excessive RFR levels at Mt. Wilson did not
"come close" to the occupational limits. The Commission determined in
1996 when it adopted the RFR Rules that different limits apply to
public and occupational RFR MPE. The occupational MPE limits apply
where persons are exposed as a consequence of their employment, have
been made fully aware of the potential for exposure, and can exercise
control over their exposure. The more stringent public MPE limits, on
the other hand, apply where the general public may be exposed or where
persons who are exposed as a consequence of their employment may not
be fully aware of the potential for exposure or cannot exercise
control over their exposure. We note that the Commission has assessed
a minimum forfeiture of $10,000 against every licensee that it has
found has willfully and/or repeatedly violated the public RFR MPE
limits. Infinity offers no persuasive evidence or arguments why the
Commission should now begin to devalue the public safety by
discounting RFR violations that do not go on for a long period of time
or do not include a violation of the occupational MPE limits.
Moreover, this is not an appropriate forum to challenge the 1996 RF
First Report and Order. Therefore, we reject these arguments.
C. Telemundo Petition
20. Telemundo argues that no reliable evidence justifies sanctions against
KWHY, that the Commission disregarded the application of uncertainty
factors in the measurements, and that the Commission failed to adopt
the uniform use of a reliable methodology for enforcing the RFR Rules.
We disagree. The methodology concerning the measurement procedure used
by the agents is detailed above, as it has been in both the NAL and
the Forfeiture Order. Also, as noted in the NAL, the agents utilized
FCC-owned, calibrated RF meters with calibrated probes and, as noted
in the Forfeiture Order, for the particular meters and probes used,
the manufacturer-specified deviations, i.e., uncertainty factors, were
applied to the measurements. While we acknowledge that deviation in
equipment and measurements creates uncertainties, there are techniques
and methods that can reduce the uncertainty, particularly when
measuring high fields, including, for example, spatial averaging,
multiple measurements and multiple devices, all of which the
Commission staff employed during the Mt. Wilson investigation. Such
procedures provide a reasonable basis for the assignment of liability
under our RFR Rules.
21. Telemundo specifically questions the methodology used by the
Commission staff to determine which of the licensees at the Mt. Wilson
site exceeded the 5% contribution threshold. We will review the
staff's actions in detail. On July 11, 2002, the Commission inspected
the Mt. Wilson site and proceeded to make several measurements using
two different models of RFR meters and probes, in the 10 ft. by 100
ft. area described above. The staff made multiple four quadrant
spatially averaged measurements throughout the area, to ensure that
they obtained consistent, repeatable readings. All of the measurements
throughout the identified area ranged from 152.5% to 197.5% of the
public MPE. Given the number of measurements made, the staff
reasonably concluded that the RFR levels in the identified area
exceeded the public MPE limits.
22. On July 12, 2002, the staff returned to the same identified area and,
after making enough measurements to ensure that they obtained
consistent, repeatable readings, the staff made two spatially averaged
measurements over one spot within the identified area which resulted
in an average measurement of 160.5%. One by one, each of the licensees
was asked to go off the air so that two spatially averaged
measurements could be made at the spot. The licensees were informed
that this was the method to be used, in order to conduct the tests in
such a manner that would cause the least amount of economic harm to
the stations. None objected, because taking individual measurements
for each station would have required all of the stations to go off the
air simultaneously. Then the staff would have had each station power
on, alone, have measurements taken, and then power off. This procedure
would have been repeated for each of the 21 stations involved and
would have required, for the majority of the testing day, that all of
the stations remain off the air. Instead, the staff ensured that each
station remained off the air only for a small period of time, so that
the two spatially averaged measurements could be made without that
station transmitting. The difference between the baseline reading of
160.5% and the reading with each station off the air was then
calculated. RFR measurements may vary from one moment to the next,
which is why the staff makes multiple spatially averaged measurements
and then averages those measurements. RFR meters and probes have
uncertainty factors, which is why the staff applies an uncertainty
factor to the difference between the baseline measurement and each
station's off-the-air measurement to determine the range of each
station's percentage contribution.
23. Telemundo argues that measurements can vary from five to ten percent
at the same location under the same conditions, and, therefore, there
is no reliable basis on which to claim KWHY exceeded the 5%
contribution threshold. We find that the staff took that fact into
consideration, along with the appropriate uncertainty factors for the
equipment used. Accepting Telemundo's formula would negate any
potential liability for any but the largest contributors and run afoul
of the requirement that RFR compliance is the shared responsibility of
all licensees whose transmitters produce, at the area in question,
power density levels that exceed 5% of the power density exposure
limit applicable to their particular transmitter. We also find that
the techniques used, and calculations made, by the staff were
reasonable and gave adequate consideration to measurement uncertainty
while balancing public safety and the economic interests of the
stations at the Mt. Wilson broadcast site.
24. Telemundo also argues that KWHY-TV should not be sanctioned because
the Commission did not specify how it exercised its discretion in not
pursuing claims against stations that did not significantly exceed the
5% threshold. Again, we disagree. As illustrated by the table below,
all of the stations on Mt. Wilson whose measurements exceeded the 5%
contribution level, when taking into account the relevant uncertainty
factors for the equipment used, were held liable by the Commission in
the Forfeiture Order:
Station Power Percentage -3 dB +3 dB
Density Contribution Uncertainty Uncertainty
KBIG-FM 0.1635 81.75% 40.88% 163.50%
KRTH-FM 0.0235 11.75% 5.88% 23.50%
KKBT(FM) 0.0220 11.00% 5.50% 22.00%
KWHY-TV 0.0360 10.50% 5.25% 21.00%
When deciding which of the broadcast licensees on Mt. Wilson should be
held liable for violating the public RFR MPE limits, the Commission
determined that only those licensees whose individual contributions always
exceeded 5%, when the manufacturer-specified deviations and uncertainty
factors were applied, would be held liable. Even when factoring in the
largest relevant uncertainty factors, KWHY-TV continued to be a greater
than 5% contributor to the public RFR MPE limit violations.
25. Telemundo also argues that the Commission incorrectly rejected
Telemundo's December 1, 2003, narrowband measurements. Telemundo
claims that these measurements are more accurate than the measurements
made by the field agents and that these measurements show KWHY's
contribution to have been approximately 2.3% of the public limit and
that it is immaterial that the Telemundo measurements were made 17
months subsequent to the Commission agents' measurement. Telemundo
states that their narrowband measurements measure only a single RF
emitter, and that the presence or absence of other RF emitters, should
not affect narrowband results. Telemundo does not indicate what
uncertainty factor, if any, it applied to its narrowband measurements.
26. As the Commission stated in the Forfeiture Order, we do not dispute
the accuracy of Telemundo's narrowband measurements as they relate to
KWHY-TV's RFR emissions on December 1, 2003, but we cannot accept them
as proof that the field agents' July 2002 measurements were made in
error. The Mt. Wilson site is home to hundreds of licensees and the
area is constantly changing, not merely by the presence of different
antennas and transmitters but even by the different constructions of
towers or other reflective material which could impact a measurement.
Although, Telemundo states that it "had not changed operating
parameters between July 2002 and December 1, 2003," the date its
narrowband measurements were made, and we have no reason to dispute
that the operating parameters for KWHY-TV did not change between July
2002 and December 2003, Telemundo does not and cannot assert that the
operational parameters of all of the RF emitters and reflectors and
re-radiators at the Mount Wilson site were the same on December 1,
2003, and July 11 and 12, 2002. We note that even from day to day,
signal levels can be affected by a variety of factors, from the
initial electrical power supplied to the transmitter, to the aging of
the electronics within a transmitter, to the internal environmental
effects on an antenna. Thus, while Telemundo's narrowband measurements
may be accurate for December 1, 2003, they do not establish that the
Commission's measurements on July 11 and 12, 2002 were not accurate.
For these reasons, we cannot accept Telemundo's narrowband
measurements as a refutation of the agents' July 2002 measurements.
27. Telemundo further argues that the Commission did not explain its
preference for measurements over predictive calculations. Telemundo
alleges that the data underlying the Forfeiture Order "has been far
from perfect" and that to accept that data "despite the clear conflict
with the Commission's own predictive methodology . . . is
unjustifiable." We have discussed in detail above the reasonableness
of our measurement procedures. We also note that calculations and
modeling do not take into account reflection and re-radiation.
28. Telemundo acknowledges that the Commission stated in the Forfeiture
Order, that at a multi-user site, such as an antenna farm, actual
measurements of the RF field may be necessary to determine whether
there is a potential for human exposure in excess of the MPE limits
specified by the FCC. An antenna farm site such as Mt. Wilson is
inevitably filled with metal towers, buildings and fences that
calculations or modeling cannot accurately take into account. We
therefore reject Telemundo's argument and affirm our finding in the
Forfeiture Order, that when taking enforcement action, in the case of
multi-emitter sites, actual measurements will be preferred over
calculations and modeling.
29. Finally, Telemundo states that neither KWHY-TV "nor Telemundo should
be subject to any obligation to monitor RF radiation compliance by
other users of Mount Wilson, and that the [KWHY-TV's] previously
submitted statement that it will do so should be made nonbinding and
dismissed." We again caution the Mt. Wilson Licensees that each has
been found to have exceeded the five percent limit, and that each
shares in the responsibility to bring the area into compliance and to
make the non-compliant area inaccessible to the public.
D. Radio One Petition
30. Radio One argues that the Commission appears to have confused
KKBT(FM)'s measurements with those of KHHT(FM). Radio One states that
KHHT(FM) broadcasts at an effective radiated power ("ERP") of 42 kW,
approximately eight times as great as KKBT(FM)'s ERP of 5.4 kW; that
KHHT(FM)'s antenna is located on the same tower as KKBT(FM)'s, but is
29 meters closer to the ground than KKBT(FM)'s antenna; and that the
theoretical estimated power density level of KHHT(FM) is 20 times
greater than the level for KKBT(FM). Therefore, Radio One argues that
without providing the comparative RFR results for KHHT(FM), the
Commission "fails to explain the improbable result of the field
31. On July 12, 2002, KHHT(FM) was measured to have a power density of
0.0110 mW/cm^2. In terms of contribution level, KHHT(FM) was found to
have contributed 5.5%. Applying the manufacturer-specified uncertainty
factors discussed above, KHHT(FM) was found to have contributed
between 2.75% and 11.00%. Because KHHT(FM), unlike KKBT(FM), and the
other stations operated by the Mt. Wilson Licensees, was not
contributing more than 5% after the uncertainty factor was attributed,
the Commission decided not to propose liability for KHHT(FM). As the
Commission explained in the Forfeiture Order, the agents did not
confuse the KHHT(FM) and KKBT(FM) transmitters. The agents
systematically contacted the licensees for the transmitters and then
requested each licensee in the vicinity of the identified area to
temporarily and sequentially power down its transmitter. An agent
accompanied each engineer as he or she "powered down" the appropriate
transmitter to ensure that no errors were made concerning which
transmitter was being measured. Separate measurements were made for
KKBT(FM) and KHHT(FM) regardless of the fact the two stations
broadcast from the same tower.
32. Further, a station's ERP and antenna height are not the sole factors
that influence the RFR emitted from a station, particularly when
measured at ground level. Other factors include antenna design, beam
tilt, polarization, directionality, number of bays, spacing of bays
and phasing. As we have also previously noted, objects in the area of
the antenna, such as other towers and fences, can also affect the
measured RFR at ground level. Indeed, another station operating at a
greater power and a lower height than KKBT(FM) also had lower RFR
contributions that KKBT(FM). As previously noted, theoretical analysis
at a communications site with multiple transmitters and towers cannot
account for or predict all of the unique factors that affect the
signals and resultant power density that occurs at the site.
Consequently, we reject Radio One's arguments.
33. We have considered the arguments raised by the Mt. Wilson Licensees in
each of the petitions and find that none of them persuade us to reduce
or cancel any of the forfeitures assessed against Infinity, Telemundo
and Radio One. We, therefore, deny the petitions.
IV. ORDERING CLAUSES
34. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 405 of the
Communications Act of 1934, as amended ("Act") and Section 1.106 of
the Commission's Rules, Infinity Broadcasting Operations, Inc.'s
petition for reconsideration, Telemundo of Los Angeles License
Corporation' petition for reconsideration, and Radio One Licenses,
LLC's petition for reconsideration of the Forfeiture Order ARE DENIED
and the Forfeiture Order IS AFFIRMED.
35. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules within 30 days of the release of this Order.
If the forfeiture is not paid within the period specified, the case
may be referred to the Department of Justice for collection pursuant
to Section 504(a) of the Act. Payment of the forfeiture must be made
by check or similar instrument, payable to the order of the Federal
Communications Commission.\001 The payment must include the NAL/Acct.
No. and FRN No. referenced above.\001 Payment by\001check or money
order may be mailed to Federal Communications Commission, P.O.
Box\001358340,\001Pittsburgh, PA 15251-8340.\001 Payment by overnight
mail may be sent to\001Mellon Bank\001/LB\001358340,\001500 Ross
Street, Room 1540670, Pittsburgh, PA 15251.\001\001Payment by wire
transfer may be made to ABA Number\001043000261, receiving
bank\001Mellon Bank, and account number\001911- 6106. Requests for
full payment under an installment plan should be sent to: Associate
Managing Director - Financial Operations, Room 1A625, 445 12th Street,
S.W., Washington, D.C. 20554.
36. IT IS FURTHER ORDERED THAT a copy of this ORDER shall be sent by First
Class and Certified Mail, Return Receipt Requested, to Radio One
Licenses, LLC, 5900 Princess Garden Parkway, 7th Floor, Lanham, MD
20706; Dennis P. Corbett, Esquire, Counsel to Infinity Broadcasting
Operations, Inc., Leventhal, Senter & Lerman, PLLC, 2000 K Street, NW,
Suite 600, Washington, DC 20006; and Telemundo of Los Angeles License
Corporation - NBC Telemundo License Co., 1299 Pennsylvania Avenue, NW,
11th Floor, Washington, DC 20004.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Infinity Broadcasting Operations, Inc., Petition for Reconsideration,
dated January 10, 2005 ("Infinity Petition").
Telemundo of Los Angeles License Corporation, LLC Petition for
Reconsideration, dated January 10, 2005 ("Telemundo Petition").
Radio One Licenses, LLC, Petition for Reconsideration, dated January 10,
2005 ("Radio One Petition").
Although AMFM Radio Licenses, LLC, licensee of KBIG-FM, which was a
subject of the original Notice of Apparent Liability, paid its forfeiture,
and filed no petition for reconsideration, it will also be included in the
collective term "Mt. Wilson Licensees."
Radio One Licenses, LLC, 19 FCC Rcd 23922 (2004) ("Forfeiture Order").
47 C.F.R. S 1.1310.
Guidelines for Evaluating the Environmental Effects of Radiofrequency
Radiation, Report and Order, ET Docket No. 93-62, 11 FCC Rcd 15123 (1996)
("RF First Report and Order"), recon. granted in part, First Memorandum
Opinion and Order, 11 FCC Rcd 17512 (1996), recon. granted in part, Second
Memorandum Opinion and Order and Notice of Proposed Rulemaking, 12 FCC Rcd
13494 (1997) ("RF Second Memorandum Opinion and Order").
See 47 C.F.R. S 1.1310, Table 1. The MPE limits are generally based on
recommended exposure guidelines published by the National Council on
Radiation Protection and Measurements ("NCRP") in "Biological Effects and
Exposure Criteria for Radiofrequency Electromagnetic Fields," NCRP Report
No. 86, Sections 17.4.1, 188.8.131.52., 17.4.2, and 17.4.3 (1986). In the
frequency range from 100 MHz to 1500 MHz, the MPE limits are also
generally based on guidelines contained in the RF safety standard
developed by the Institute of Electrical and Electronics Engineers, Inc.
("IEEE") and adopted by the American National Standards Institute ("ANSI")
in Section 4.1 of "IEEE Standard for Safety Levels with Respect to Human
Exposure to Radio Frequency Electromagnetic Fields, 3 kHz to 300 GHz,"
ANSI/IEEE C95.1-1992 (1992).
Table 1 in Section 1.1310 of the Rules provides that the general
population RFR maximum permissible exposure limit for a station operating
in the frequency range of 30 MHz to 300 MHz is 0.200 mW/cm^2 and the
general population RFR maximum permissible exposure limit for a station
operating in the frequency range of 300 MHz to 1500 MHz is f/1500 mW/cm^2
which for station KWHY-TV operating on 512 - 518 MHz is 0.345 mW/cm^2.
47 C.F.R. S 1.1310, Note 1 to Table 1.
47 C.F.R. S 1.1310, Note 2 to Table 1.
See, for example, OET Bulletin 65: "Evaluating Compliance with FCC
Guidelines for Human Exposure to Radiofrequency Electromagnetic Fields"
See 47 C.F.R. SS 1.1307(b), 1.1307(b)(1), 1.1310.
RF Second Memorandum Opinion and Order, 12 FCC Rcd at 13520-21; 47 C.F.R.
RF Second Memorandum Opinion and Order, 12 FCC Rcd at 13524; 47 C.F.R. S
1.1307(b)(3). Power density is equal to the square of the electric field
strength divided by the characteristic impedance of free space (377 ohms).
Similarly, power density is equal to the square of the magnetic field
strength times the characteristic impedance of free space. The power
density is expressed in milliwatts per square centimeter. RF Second
Memorandum Opinion and Order,12 FCC Rcd at n.74.
Id. at 13520-21; 47 C.F.R. S 1.1307(b)(3).
RF Second Memorandum Opinion and Order, 12 FCC Rcd at 13522 - 13523; 47
C.F.R. S 1.1307(b)(3).
RF Second Memorandum Opinion and Order, 12 FCC Rcd at 13538; 47 C.F.R. S
RF Second Memorandum Opinion and Order, 12 FCC Rcd at 13540; 47 C.F.R. S
1.1307(b)(5). See also, Public Notice, Year 2000 Deadline for Compliance
with Commission's Regulations Regarding Human Exposure to Radiofrequency
Emissions (released Feb. 25, 2000); Public Notice, Erratum to February 25,
2000 Public Notice, 15 FCC Rcd 13600 (released April 27, 2000); Public
Notice, Reminder of September 1, 2000, Deadline for Compliance with
Regulations for Human Exposure to Radiofrequency Emissions, 15 FCC Rcd
18900 (released Aug. 24, 2000).
See 47 C.F.R. S 1.1310, Table 1 (General population/uncontrolled limits
apply in situations in which the general public may be exposed). "Members
of the general public always fall under this category when exposure is not
employment-related . . . ." RF First Report and Order, 11 FCC Rcd 15123,
Agents contacted broadcast stations after the RFR measurements to arrange
for On-Off testing on July 12, 2002.
Table 1 of Section 1.1310 specifies the applicable MPE limits in terms of
power density (mW/cm^2) for FM and television broadcast station
transmitters. The maximum power density levels permitted are frequency
dependent. During the Mt. Wilson inspection, the FCC agents utilized a FCC
owned, calibrated RF meter with a calibrated probe that measures the
electric field from RF signals in the band 300 kHz to 40 GHz. The probe is
a sensor designed to simultaneously measure the RF emissions of multiple
transmitters on widely separated frequencies such as would occur at an
antenna farm containing both FM broadcast stations and television stations
and can be used to determine the total RF power level at a particular
location. The probe's frequency response curve is "shaped" to mimic the
FCC MPE limits. The energy of the signals the probe detects are converted
to a power density, then calculated as a percentage of the MPE limit for
the appropriate frequency and added together. The results are displayed on
the meter as a percentage of the MPE limit. See, generally, OET Bulletin
65 at Section 3, "Measuring RF Fields."
Section 1.1307(b)(3) of the Rules states: "In general, when the guidelines
specified in S 1.1310 are exceeded in an accessible area due to the
emissions from multiple fixed transmitters, actions necessary to bring the
area into compliance are the shared responsibility of all licensees whose
transmitters produce, at the area in question, power density levels that
exceed 5% of the power density exposure limit applicable to their
particular transmitter. . . . " 47 C.F.R. S 1.1307(b)(3).
Measurements were taken for each transmitter operating at the site,
including auxiliary, analog and digital transmitters.
The combined power density levels produced by the four stations listed in
this NAL add up to 115% of the Commission's MPE limits. The difference
between the 115% produced by the four stations and the power density level
measurements with all stations operational, 160.5%, is accounted for by
the fact that there were 17 other stations that were not producing power
density levels at significantly more than 5% of the public MPE limits, but
did add to the overall power density level.
AMFM Radio Licenses, LLC, 18 FCC Rcd 22769 (2003).
AMFM raised no issues in its response but noted that the field agent
testing occurred while KBIG-FM was operating from its auxiliary facility.
AMFM states that "[w]hen KBIG-FM operates from its main antenna the total
RFR level on the area is reduced such that it remains within public MPE
limits." AMFM Response at 1.
Radio One Licenses, LLC, 19 FCC Rcd 23922 (2004). AMFM Radio Licenses,
LLC, licensee of KBIG-FM, had paid its forfeiture of $10,000 after the
issuance of the NAL and was, therefore, not named in the Forfeiture Order.
47 C.F.R. S 1.1310.
47 C.F.R. S 1.1307(b)(1).
In each of the sworn statements the relevant licensee indicated that when
KBIG-FM decides to operate from its auxiliary transmitter, it will confirm
that the driveway is secured. 19 FCC Rcd at 23936.
47 C.F.R. S 1.1307(b)(3).
AMFM Broadcasting Licenses, LLC, is the licensee of KHHT(FM).
See 47 C.F.R. S 1.106(c); EZ Sacramento, Inc.,15 FCC Rcd 18257, P 2 (EB
2000), citing WWIZ, Inc., 37 FCC 685, 686 (1964), aff'd sub. nom. Lorain
Journal Co. v. FCC, 351 F.2d 824 (D.C. Cir. 1965), cert. denied, 383 U.S.
EZ Sacramento, Inc., 15 FCC Rcd at 18257, P 2.
Infinity Petition at 2 - 4.
Infinity Petition at 4 - 5.
See 19 FCC Rcd at 23928 - 23930.
19 FCC Rcd at 23929, citing RF Second Memorandum Opinion and Order, 12 FCC
Rcd at 13522 (1997).
47 C.F.R. SS 1.1307(b)(3), 1.1310 .
RF Second Memorandum Opinion and Order, 13 FCC Rcd at 13524.
RF Second Memorandum Opinion and Order, 13 FCC Rcd at 13521.
As explained in the Forfeiture Order, "in neither the Rules nor the RF
Second Memorandum Opinion and Order, does the Commission suggest that
anything other than the 'traditional enforcement model' be used with
respect to a licensee that has willfully and repeatedly violated the
Commission's Rules." 19 FCC Rcd at 23929.
Infinity Petition at 5.
The term "repeated" as defined by the Act, means that the violation
occurred "more than once, or, if such commission or omission is
continuous, for more than one day." 47 U.S.C. S 312(e)(2).
We discuss the alleged imprecision in the measurements in PP 20 - 23,
Infinity Petition at 5.
RF First Report and Order, 11 FCC Rcd 15123, 15139 (1996).
11 FCC Rcd at 15139. Regarding the public MPE limits, the Commission noted
that "members of the general public always fall under this category when
exposure is not employment related, as is the case of residents in an area
near a broadcast tower." 11 FCC Rcd 15139 - 15140.
See, e.g., A-O Broadcasting Corporation, 20 FCC Rcd 756 (2005).
Telemundo Petition at 6 - 8.
18 FCC Rcd at 22771 - 22773; 19 FCC Rcd at 23923 - 23926.
18 FCC Rcd at 22772, n.17. For the July 11, 2002, measurements, agents
used W&G EMR-300 meters and Type 25 probes ("W&G Meters") and Narda Model
8718 meters and Model 8722 probes ("Narda Meters"). When conducting the
on-off tests and individual station measurements on July 12, 2002, the
agents used the W&G Meters exclusively.
19 FCC Rcd at 23931, n.63. The manufacturer-specified uncertainty factors
for the W&G Meters and the Narda Meters extend from +/- 0.5 dB to +/- 3
dB, depending on various factors, including, for example, the magnitude of
the measurement, the frequency response, the isotropic deviation and the
Telemundo also argues that no sanctions can be justified against KWHY
because if a "measurement yields a 5, plus or minus 2, it is equally valid
to argue that the `real' measurement is 3 or 4 as it is to argue that the
result is 5." Telemundo Petition at 6 - 7. If we accept this premise then
we must add what Telemundo does not, which is that the measurement is just
as likely to yield a 6 or 7. Uncertainty factors, whether assessed by the
Commission staff, or Telemundo, also indicate an increase in the magnitude
of the measurement. Unlike Telemundo, we cannot ignore the upper range
because the purpose of the RFR Rules is "[t]o protect public health with
respect to RF radiation from FCC-regulated transmitters . . . ." 11 FCC
Rcd at 15184.
For the July 11, 2002, measurements, the staff used W&G EMR-300 meters and
Type 25 probes and Narda Model 8718 meters and Model 8722 probes. This was
done to ensure consistency in the readings.
When conducting the on-off tests and individual station measurements on
July 12, 2002, the staff used W&G EMR-300 meters and Type 25 probes.
See P 24, below. According to the manufacturer specifications for the
meter and probe used on July 12, 2002, the uncertainty factor for the
range of 300 MHz to 1 GHz (the applicable range of frequencies for KWHY)
is +/- 1 dB.
Telemundo Petition at 7 - 8.
47 C.F.R. S 1.1307(b)(3). We note that when the Commission amended the RFR
Rules in 1997, it specifically considered the problems of uncertainty and
accuracy in measurements when it raised the "responsibility threshold
above which licensees at multiple tranmsitter locations must share
responsibility for addressing RF exposure non-compliance problems, from 1%
to 5%." RF Second Memorandum Opinion and Order, 12 FCC Rcd at 13520. The
Commission also determined that raising the threshold to 10% could "lead
to the creation of areas of non-compliance" and therefore determined that
"a 5% threshold represents a reasonable and supportable compromise." Id at
13520 - 13521.
Telemundo Petition at 5 - 9.
The relevant uncertainty factors applied on July 12, 2002, for the on-off
testing of individual stations, totaled +/- 3 dB. We note that even
Telemundo acknowledges that a +/- 3 dB uncertainty factor is a "good rule
of thumb when making measurements in multi-signal environments with this
type of equipment." Telemundo Petition, Exhibit 1 at 10.
As stated in the Forfeiture Order, the Commission is a regulatory agency
with broad prosecutorial discretion in enforcement proceedings. See, In
re: Notices of Apparent Liability for Forfeitures of Emery Telephone, 15
FCC Rcd 7181, 7186 (1999). The courts have found that, as a general
matter, the Commission "is best positioned to weigh the benefits of
pursuing an adjudication against the costs to the agency and the
likelihood of success." 19 FCC Rcd at 23922, citing New York State Dept.
of Law v. F.C.C., 984 F.2d 1209, 1213 (D.C. Cir. 1993).
Telemundo Petition at 9 - 11.
Telemundo also inexplicably states that the Commission "is not, as a rule,
troubled by lapses of time with respect to RF radiation measurements: for
example the agents apparently did not re-measure the hotspot on July 12,
2002 or upon a return to the site in September 2003." Telemundo Petition
at 10 - 11. As stated in the NAL, the Forfeiture Order, and in this Order
at PP 8 - 9, above, the agents performed measurements at the hotspot on
July 12, 2002. Also, as stated in the NAL, the Forfeiture Order, and this
Order at P 10, above, the September 2003 inspection focused on the Mt.
Wilson Licensees' compliance with restricting access to the site, which,
as noted above, they had failed to do. Consequently, Telemundo's next
allegation, that the Commission "cannot have it both ways; it cannot
reject out-of-hand Telemundo's measurements for being on a subsequent day
and then accept its own measurements regardless of the day at issue" is
baffling. Telemundo Petition at 11.
Telemundo also argues that the Commission failed to acknowledge that
Telemundo offered measurements as well as calculations. Telemundo Petition
at 11. To the extent Telemundo is referring to its narrowband
(Continued from previous page)
we note that the Commission considered them, and rejected them as not
refuting the agents' measurements, in the Forfeiture Order, 19 FCC Rcd at
Telemundo Petition at 11. We are mindful of the adage "let not the perfect
be the enemy of the good." Federal-State Joint Board on Universal Service,
16 FCC Rcd 11244, 11248 (2001); see also, FCC v. MCI, 627 F.2d 322,
341-342 (D.C. Cir. 1980) (admonishing the Commission that "[t]he best must
not become the enemy of the good, as it does when the FCC delays making
any determination while pursuing the perfect tariff.") We refuse to
refrain from enforcing our RFR Rules because uncertainty exists in the RFR
measurement data. As detailed above, the appropriate uncertainty factors
have been taken into account to ensure fair proceedings for all licensees.
OET Bulletin 65 at 44. This is consistent with Commission's rules and
precedent preferring measurements to calculations in certain cases. See
e.g., 47 C.F.R. S 73.153 (in determination of interference, groundwave
field strength measurements will take precedence over theoretical values);
In re Applications of Benjamin F. Thomas and Roy A. Grove D.B.A.
Greencastle Broadcasting Co., 16 FCC 2d 923 (1969) (measurement data
indicating no prohibited overlap are to be preferred over the calculations
based on figure M-3 conductivities).
Telemundo Petition at 3.
47 C.F.R. S 1.1307(b)(3).
Radio One also argues that the Commission misinterpreted a 1997 RF
amendment that was filed for KKBT(FM) (then KIBB) and KHHT(FM) (then KKBT)
renewals which, as Radio One acknowledges, stated that "[a]ll KKBT and
KIBB antennas contribute greater than 10 uW/cm^2 or greater than 5% of 0.2
mW/cm^2 and therefore are considered as contributors to electromagnetic
fields in non-controlled areas." Radio One argues that a data table in the
document actually shows that the now KKBT(FM) main antenna's RF level was
not greater than the 10 mW/cm^2 threshold and therefore not a contributor.
While we accept Radio One's assertion that the 1997 RF Amendment is
internally inconsistent and its probative value diminished, we note that
the Commission cited to the document to (Continued from previous page)
demonstrate that Radio One, as the licensee of KKBT(FM) had notice that
the most recent renewal filing for KKBT(FM) (then KIBB), at the time of
the Mt. Wilson inspection, contained an RF amendment that named KKBT(FM)
(then KIBB) as a contributor. The 1997 RF Amendment also states that
measurements showed that a "couple of `hot spots' were found against a
fence along the access road just east of the KKBT [ ] site and one fifty
foot long by six feet wide strip was found in the center of the road just
south of the site in front of the Allcom building." See File No.
BRH-970730ZC, filed July 30, 1997. The RF Amendment was filed on December
Radio One Petition at 4.
Radio One states that KKBT(FM) has a 49 meter antenna radiation center
above ground level in comparison to KKBT(FM)'s 78 meter antenna radiation
center above ground level. Radio One Petition at 4.
Radio One states that according to its calculation the theoretical
estimated power density level for KHHT(FM) is 0.584 mW/cm^2 while the
level for KKBT is 0.029 mW/cm^2. Radio One Petition at 5.
Radio One Petition at 5.
19 FCC Rcd at 23934.
For example, KIIS-FM, whose transmitter was also located on the same
tower, was found to have contributed 3.5% of the public MPE for its
transmitter. According to Commission records, KIIS-FM is licensed to
operate at 34-o 13' 36'' N latitude and 118-o 03' 57'' W longitude.
KIIS-FM is licensed to operate an 8 kW ERP directional antenna with a 66
meter antenna radiation center above ground level. KHHT-FM is licensed to
operate at 34-o 13' 36'' N latitude and 118-o 03' 57'' W longitude.
KKBT(FM) is licensed to operate at 34-o 13' 37'' N latitude and 118-o 03'
58'' W longitude.
47 U.S.C. S 405.
47 C.F.R. S 1.106.
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
(continued. . . )
Federal Communications Commission FCC 06-173
Federal Communications Commission FCC 06-173